Kaye v. Burlington Northern Santa Fe, LLC
Filing
63
MEMORANDUM OPINION and ORDER: The court ORDERS that defendant's 21 motion for summary judgment be, and is hereby, granted, and that all claims and causes of action asserted by plaintiff against defendant in the above-captioned action be, and are hereby, dismissed. (Ordered by Judge John McBryde on 5/31/2018) (tln)
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IN THE UNITED STATES DISTRICT/ COURTr··-~---~NORTHERN DISTRICT OF TExis .
. M_·A·Y· 3 I 2018 I
FORT WORTH DIVISION
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CLERK, U.S. DISTIUCT comn
j
AMBER KAYE,
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§
By _ _ _ _
§
Plaintiff,
Deputy
§
§
vs.
§
NO. 4:17-CV-656-A
§
BNSF RAILWAY COMPANY,
§
§
Defendant.
§
MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion of defendant, BNSF Railway Company, for summary judgment
on the claims plaintiff, Amber Kaye, has asserted against it.
The court considered the motion and heard from the parties in
reference thereto at the pretrial conference held May 29, 2018.
Having considered the motion, plaintiff's response thereto, the
reply, the record in this action, the applicable legal
authorities, and the verbal presentations of the parties, through
counsel, at the pretrial conference, the court concludes that the
motion should be granted, and that plaintiff's claims against
defendant should be dismissed.
I.
Plaintiff's Claims
Plaintiff initiated the above-captioned action on August 7,
2017, by the filing of an original complaint.
On March 26, 2018,
1
)
plaintiff filed her first amended complaint.
In it, plaintiff
alleged claims against defendant for disability discrimination,
failure-to-accommodate, and retaliation, each arising under the
Americans with Disabilities Act, 42 U.S.C.
§§
12111-12213, and
Chapter 21 of the Texas Labor Code.
II.
Grounds of the Motion
Defendant urges the court to grant its motion for the
following reasons:
(1) plaintiff's disability discrimination and
failure-to-accommodate claims fail because plaintiff was not a
"qualified individual," and she was not discriminated against
because of, nor denied a reasonable accommodation for, her
alleged disability;
(2) plaintiff's retaliation claim fails
because plaintiff was not a "qualified individual," and she did
not engage in nor was she retaliated against for engaging in
legally protected activity;
(3) all of plaintiff's claims fail
because defendant had a legitimate, non-discriminatory reason for
terminating her employment, that was not pretext for
discrimination or retaliation;
(4) plaintiff's failure to
mitigate her damages foreclosed her ability to recover back pay
or front pay; and (5) plaintiff's Family & Medical Leave Act,
28 U.S.C.
§§
2611-2654, and Title VII, 42 U.S.C.
2000e-17, claims fail because she abandoned them.
2
§§
2000e to
III.
Undisputed Facts
The summary judgment record establishes without dispute the
following facts pertinent to the first three grounds of the
motion:
Plaintiff worked for defendant from 2012 until August 26,
2015, as an international border customs clerk ("customs clerk")
Doc. 1 51 at 1, , 4.
As a customs clerk, plaintiff served as a
point of contact for, and otherwise provide assistance to,
defendant's trains crossing the border between the United States
and Canada.
Doc. 23 at 37-40.
Each customs clerk is assigned to
work one of several eight-hour shifts.
86.
Id. at 131; Doc. 51 at
In addition to their regularly scheduled shifts, each
customs clerk was often required to report to work on shifts that
were not their regularly scheduled shifts.
Doc. 23 at 152, , 5.
At times, an on-call customs clerk was permitted to refuse when
called to cover a shift, but only if there was another customs
clerk with less seniority to whom the shift could be deferred.
Id. at 56-57 & 152, , 5.
If more senior customs clerks were not
willing to fill a shift that became available, it was mandatory
'The "Doc._" reference is to the number of the referenced item on the docket in this action,
No. 4:17-CV-656-A.
3
for custom clerks with the least seniority to fill the shift.
Id.
When plaintiff was hired, she received training on a variety
of matters, including the company's anti-discrimination and antiharassment policies, how to report discrimination or harassment,
how to access company policies, and how to access and use
defendant's Employee Assistance Program ("EAP").
167-68, , , 3 & 5.
Id. at 24 &
Plaintiff knew how to access defendant's
company policies, including the policy that governed how to
request an accommodation, at all points during her employment.
Id. at 48 & 118-19.
On February 19, 2015, one of plaintiff's supervisors, either
LaDonna Grubbs
("Grubbs") or Dena Wilds ("Wilds"), informed
plaintiff that she should use EAP if she was experiencing
problems that would interfere with her work.
51-52, & 159 at , 5.
Id.
at 12-13, 49,
Plaintiff did not contact EAP until
July 20, 2015.
On May 14, 2015, plaintiff was found sleeping at her desk
while at work.
Id. at 95-96, 146, & 164.
Plaintiff explained to
her supervisor that she was exhausted due to working a number of
days without a day off.
Id. at 96 & 164.
She was shown leniency
for that terminable offense due to her demanding work schedule.
4
Id. at 96, 105, 158, & 164.
other occasions.
She had fallen asleep at her desk on
Id. at 70.'
In June 2015, plaintiff notified defendant that she was
unable to be on-call during certain times, despite the mandatory
nature of some on-call requests.
Id. at 57-59 & 136.
Grubbs
reminded plaintiff by letter that plaintiff was not permitted to
unilaterally decide to be unavailable.
Id. at 136 & 152,
~
5.
The letter further explained to plaintiff that "[a)ny medical
condition that impacts [plaintiff's) ability to meet [her)
employment obligations must be reviewed and approved with the
BNSF Medical Department."
Id. at 136.
assistance from the medical department.
Plaintiff did not seek
Id.; Doc. 51 at 3.
On June 6, 2015, plaintiff was found huddled over a trash
can.
Doc. 23 at 60-65 & 152; Doc. 51 at 3.
Paramedics were
called and plaintiff was transferred by ambulance to a local
hospital.
Doc. 23 at 60-65 & 152; Doc. 51 at 4.
Plaintiff
returned to work several days later with a medical release from
her doctor that stated that plaintiff could perform her job
without any medical restrictions.
Doc. 23 at 66-68, 137-42, &
'When complaining to her physician of insomnia on June 10, 2014, she told her physician that
"she was having problems with falling asleep at work." Id. at 144.
5
152.
She also signed a form representing that she could return
to work free of restrictions:
I, Amber M. Kaye, BNSF Employee number B0144766
acknowledge that I can safely return to my regular
duties following an absence from work since 6/6/15
(date last worked) .
I do not have work place
restrictions that prevent me from performing all of my
work tasks safely.
Id. at 143
On July 19, 2015, after noticing that plaintiff was not at
her desk, Grubbs began searching for plaintiff.
,, 9-11.
Id. at 153,
Eventually, Grubbs looked under plaintiff's desk to see
if plaintiff's purse was there, based on the belief that if
plaintiff's purse was under her desk it would mean that plaintiff
was at least on site.
Id. at 153, , 10; Doc. 51 at 47-48.
she did, she found plaintiff sleeping on her side,
. a coworker's parka.•
Doc. 23 at 153, , 11.
When
•wrapped in
When Grubbs
awakened plaintiff, she reminded plaintiff that if she was
experiencing a medical issue, she needed to go to defendant's
medical department,
job."
•otherwise she needed to sit down and do her
Id. at 154, , 13; Doc. 51 at 47-48.
Her supervisors
further offered to let her leave early and to arrange for a ride
home.
Doc. 23 at 154, , 14; Doc. 51 at 47-48.
Plaintiff refused
these offers, insisted she was fine, and finished her shift
without further incident.
Doc. 23 at 154-55, ,, 14-15; Doc. 51
at 47-48.
6
The following day, July 20, 2015, plaintiff contacted EAP
for the first time.
49.
Doc. 23 at 17-21, 55, 98-100, 120-22, & 147-
EAP advised plaintiff that she needed to receive an
assessment at Texas Health Alliance Behavioral Health to develop
a plan.
Id. at 148.
Plaintiff was given further instructions to
follow-up with EAP after her evaluation if additional assistance
was needed, but plaintiff never followed up.
Id.
On August 3, 2018, plaintiff's coworker Tony Bagzis
("Bagzis") sent a letter to Carl Ice, defendant's President and
CEO, on plaintiff's behalf, representing that he believed that
plaintiff was being subject to discrimination and retaliation.
Doc. 51 at 59-60. 3
On August 11, 2015, defendant conducted a hearing as part of
its formal investigation into the July 19, 2015 incident where
'This was Bagzis's second letter to Carl Ice. The first, sent on July 2, 2015, said:
Dear Mr. lee,
I would like to have a chance to meet with you on this matter of impmtance. I
spoke with your secretary, Beverly, who stated you would be in your office on Monday,
July 6, 2015.
I feel that you will get this letter sooner by email than you would if! waited to
bring it to you in person. I feel as though this is urgent for you to be informed.
If you have any questions at all, please feel free to call me at any time. I want to
Thank You in advance for your valuable time and attention.
Doc. 51 at 38. Both parties have submitted evidence to show that such letter was intended to bring to Mr.
Ice's attention Bagzis's perception that plaintiff was being mistreated by defendant. Doc. 23 at 183-85;
Doc. 51 at 36-40.
7
plaintiff was found asleep under her desk.
, 5-7.
Doc. 23 at 180-82,
Plaintiff was represented at the hearing by her union
representative.
Doc. 51 at 41.
testified at the hearing.
Plaintiff, Bagzis, and Grubbs
Doc. 23 at 174-78; Doc. 51 at 41-46.
Based on an evaluation of the evidence presented at the
hearing, the officer in charge concluded that plaintiff had not
suffered a panic attack but was instead sleeping when she was
found under her desk.
Doc. 23 at 180, , 5.
The officer
recommended that plaintiff's employment be terminated.
second representative of defendant concurred.
Id.
Id.
A
After
reviewing the recommendation and the transcript of the hearing,
Bonnie Van Sickle, the supervisor who made the decision to
terminate plaintiff, accepted the recommendation to terminate
plaintiff for violating a company policy that prohibited
employees from sleeping while on duty.
Id.
IV.
Summary Judgment Principles
Rule 56(a) of the Federal Rules of Civil Procedure states
that the court shall grant summary judgment on a claim or defense
if there is no genuine dispute of material fact and the movant is
entitled to judgment as a matter of law.
The summary judgment
movant bears the initial burden of showing that there is no
genuine dispute of material fact.
8
Celotex Corp. v. Catrett, 477
U.S. 317, 323, 325
(1986).
The movant can carry this burden by
pointing out the absence of evidence supporting one or more
essential elements of the nonmovant's claim,
"since a complete
failure of proof concerning an essential element of the nonmoving
party's case necessarily renders all other facts immaterial."
Id. at 323.
Once the movant has carried its burden under Rule 56(a), the
nonmovant must identify specific evidence in the record and
articulate the precise manner that creates a genuine dispute of
material fact.
Id. at 324; see also Fed. R. Civ. P. 56(c)
("A
party asserting that a fact
. is genuinely disputed must
support the assertion by .
citing to particular parts of
materials in the record .
. ") .
A fact is material if it
might affect the outcome of the case under the governing law.
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248
(1986).
A
dispute about a material fact is genuine if the evidence is such
that a rational fact finder could resolve the dispute in favor of
either party. Id.
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law.
Celotex Corp., 477 U.S. at 323.
If the record taken as a
whole could not lead a rational trier of fact to find for the
9
nonmovant, there is no genuine dispute for trial and summary
judgment is appropriate.
Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 597 (1986); see also Boeing Co. v.
Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969)
(en bane)
(explaining the standard to be applied in determining whether the
court should enter judgment on motions for directed verdict or
for judgment notwithstanding the verdict) .
v.
Analysis
A.
The ADA Claims'
1.
Disability Discrimination
Plaintiff's first asserted claim against defendant is that
defendant impermissibly terminated her because of a disability.
The ADA prohibits an employer from "discriminat[ing] against a
qualified individual with a disability because of the disability
1
'
42 U. s. C.
§
12112 (a) .
Absent direct evidence of
discrimination, a plaintiff must show that: "(1)
disability;
( 2)
[s] he has a
[s] he was qualified for the job; and (3)
1
[s] he
In addition to the ADA, plaintiff brings each of her ADA-related elaims pursuant to Chapter 21
of the Texas Labor Code. "An express purpose of Chapter 21 is to provide for the execution of the
policies embodied in Title I of the [ADA]." Jurach v. Safety Vision, LLC, 642 F. App'x 313, 318 (5th
Cir. 2016) (citing Tex. Lab. Code.§ 21.001(3) and Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1024 n. 4
(5th Cir. 1999). Thus, it is appropriate for the comt to apply federal law when interpreting claims
brought pursuant to Chapter 21. See Talk, 165 F.3d at 1021; Hoffmann-La Roche Inc. v. Zeltwanger,
144 S.W.3d 438, 445-46 (Tex. 2004).
'
10
was subject to an adverse employment decision on account of [her]
disability.•
Delaval v. Ptech Drilling Tubulars, L.L.C., 824
F.3d 476, 479 (5th Cir. 2016)
citations omitted).
(internal quotation marks and
After establishing a prima facie case,
"the
burden shifts to the employer to 'articulate a legitimate,
nondiscriminatory reason for' the adverse employment action.•
Id.
Then, the employee must present evidence that the
articulated reason is pretextual.
Id.
"[D]iscrimination need
not be the sole reason for the adverse employment decision .
so long as it actually plays a role in the employer's decision
making process and has a determinative influence on the outcome."
Id. at 479-80
a.
(alterations omitted).
No Evidence to Support Finding of Prima Facie Case
Plaintiff's claim of disability discrimination fails because
plaintiff has not adduced evidence to satisfy her prima facie
case burden.
Under the ADA, a "qualified individual" means an
individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that
such individual holds or desires.
42 U.S.C.
§
12111(8).
"To avoid summary judgment on whether [an employee]
qualified individual,
is a
[the employee] needs to show (1) that [s] he
could perform the essential functions of the job in spite of
[her] disability or (2) that a reasonable accommodation of
11
[her]
disability would have enabled [her]
functions of the job."
1090, 1093
to perform the essential
Turco v. Hoechst Celanese Corp., 101 F.3d
(5th Cir. 1996).
"Providing a
'reasonable
accommodation' under the ADA does not require the employer to
'relieve the employee of any essential functions of the job,
modify the actual duties, or reassign existing employees or hire
new employees to perform those duties.'"
Sch. Dist.,
690 F. App'x 249, 254
Claiborne v. Recovery
(5th Cir. 2017)
(quoting
Robertson v. Neuromedical Ctr., 161 F.3d 292, 295 (5th Cir.
1998)).
"If [the employee]
of
job absent assigning those duties to someone else,
[her]
can't perform the essential functions
(e.g., having someone else perform [her]
job) then [the employee]
can not be reasonably accommodated as a matter of law."
Robertson, 161 F.3d at 295.
Plaintiff has adduced no summary judgment evidence that she
could perform the essential functions of her job as a customs
clerk.
She claimed that "the only physical requirements
[of her
job] are lifting and sitting, and that plaintiff "was able to
perform those functions,• doc. 50 at 15, but, sitting and lifting
are not the only job requirements that a customs clerk must be
able to perform.
Plaintiff admitted that it was critical in her
role as a customs clerk to maintain complete attentiveness at all
times.
Doc. 23 at 40 & 53.
Moreover, plaintiff has failed to
12
point to any summary judgment evidence that a reasonable
accommodation would have allowed her to perform her job.
Plaintiff has also failed to establish that she was subject
to an adverse employment decision because of her disability.
An
employee must show that discrimination was at least a motivating
factor contributing to the adverse employment decision.
Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008);
Soledad v. U.S. Dep't of Treasury, 304 F.3d 505, 503
2 002)
(5th Cir.
("Under the ADA, discrimination need not be the sole reason
for the adverse employment decision, but must actually play a
role in the employer's decision making process and have a
determinative influence on the outcome."
marks and brackets removed)).
(internal quotation
Plaintiff provided no such
evidence to support her contention that she was terminated
because of any disability.
Plaintiff does not challenge that defendant sincerely
believed she was sleeping.
In any event, whether plaintiff was
under her desk because she suffered an anxiety attack or because
she was sleeping is not dispositive.
The essential question in
evaluating whether an employment decision was wrongful is whether
the employer reasonably believed an employee was engaged in
wrongdoing.
See Sanstad v. BC Richard Ellis, Inc., 309 F.3d 893,
899 (5th Cir. 2002)
("The issue is .
13
. whether [defendant's]
reason, even if incorrect, was the real reason for plaintiff's
termination."); Deines v. Tex. Dep't of Prat. & Reg. Servs., 164
F.3d 277, 281
(5th Cir. 1999).
There is no summary judgment
evidence that defendant did not honestly and reasonably believe
that plaintiff was sleeping under her desk and that whatever
caused that to happen prevented plaintiff from being qualified to
perform the duties of her job with defendant.
b.
Legitimate Reason for Termination and No Evidence
of Pretext
Even if plaintiff had established a prima facie case of
discrimination, which the court finds she has not done, defendant
has articulated a legitimate, nondiscriminatory reason for
terminating plaintiff, and plaintiff has not offered substantial
evidence that defendant's legitimate, nondiscriminatory reason is
pretext for discrimination.
As explained above, plaintiff acknowledges that she was
terminated because her supervisor believed plaintiff was sleeping
when plaintiff was found asleep under her desk, wrapped in her
coworker's parka.
Doc. 23 at 96.
Plaintiff does not point to any evidence tending to show
that Grubbs was hostile to whatever medical condition plaintiff
might have had.
While it is true that Grubbs stated plaintiff
could not unilaterally decide to be unavailable for her on-call
shifts, the letter conveying such information also informed
14
plaintiff that "[a] ny medical condition impact [ing]
ability to meet
[plaintiff's]
[her] employment obligations must be reviewed
with the BNSF Medical Department."
Doc. 51 at 16.
If anything,
this statement should be viewed as encouraging plaintiff to seek
assistance if she had a medical condition affecting her ability
to work.
Thus, summary judgment on plaintiff's disability
discrimination claim is proper on the additional ground that
defendant had a legitimate non-discriminatory reason to terminate
plaintiff's employment and plaintiff has not adduced evidence
that such reason was a pretext for discrimination.
2.
Failure-to-Accommodate
Plaintiff's second asserted claim against defendant is that
defendant failed to reasonably accommodate plaintiff's disability
in violation of the ADA.
The ADA requires employers to make
"reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a
disability .
. unless . . . the accommodation would impose an
undue hardship on the operation of the business."
§
42 U.S.C.
12112 (b) (5) (A); Griffin v. United Parcel Serv., Inc., 661 F.3d
216, 224
(5th Cir. 2011).
To prevail on a failure-to-accommodate
claim under the ADA, plaintiff must prove that: "(1) the
plaintiff is a 'qualified individual with a disability;'
15
(2) the
disability and its consequential limitations were 'known' by the
covered employer; and (3) the employer failed to make 'reasonable
accommodations' for such known limitations."
Feist v. La., Dep't
of Justice, Office of the Att'y Gen., 730 F.3d 450, 452 (5th Cir.
2013).
Plaintiff's failure-to-accommodate claim fails because
plaintiff has adduced no evidence that she requested an
accommodation for her asserted disability.
Generally, it is
incumbent on the disabled individual to inform the employer that
an accommodation is needed.
E.E.O.C. v. Chevron Phillips Chem.
Co., LP, 570 F.3d 606, 621 (5th Cir. 2009)
needs an accommodation
her employer.") .
("An employee who
. has the responsibility of informing
"If the employee fails to· request an
accommodation, the employer cannot be held liable for failing to
provide one."
Taylor v. Principal Fin. Grp., 93 F.3d 155, 165
(5th Cir. 1996).
Once an accommodation for a limitation is
requested, the employer must engage in the "interactive process"
with the employee with the aim of finding an appropriate
accommodation.
Chevron Phillips Chem. Co., LP, 570 F.3d at 621.
The employer violates the ADA by failing to engage in good faith
in the interactive process.
Griffin, 661 F.3d at 224.
On the
other hand, if the employee is responsible for a breakdown in the
16
interactive process, there is no violation.
Id.; Taylor, 93 F.3d
at 165.
Plaintiff testified that despite her knowledge of the
procedure for requesting an accommodation, she never requested
one.
Doc. 23 at 26-27, 32-34, 37-38, 47-48, 55, 58-60, 75, 89,
98, 103, 135-136, & 148-49.
Plaintiff called EAP on July 20,
2015, after the incident where she was found asleep under her
desk, id. at 147-49, but nothing in the record suggests that
plaintiff contacted EAP in an effort to obtain an accommodation
for her alleged disability.
Instead, the record shows that
plaintiff cited "mandatory supervisor referral for poor work
behavior/problems" as the reason she contacted EAP.
Id. at 147.
To the extent that plaintiff claimed during her deposition
that she was in fact attempting to request an accommodation when
she contacted EAP, such claim suffers a fatal flaw: plaintiff
failed to follow up with EAP after her initial meeting.
See
Delval, 824 F.3d at 482 (finding that employee who failed to
follow up with medical documentation fatally hindered the
interactive process).
After discussing the issues plaintiff was
facing at work and at home, a representative of EAP recommended
that plaintiff be medically evaluated.
Doc. 23 at 100 & 148.
EAP instructed plaintiff to follow up after her assessment if
additional assistance beyond the medical evaluation was
17
necessary.
Id.
Plaintiff went for an evaluation but never
contacted EAP again.
3.
Id. at 121-22.
Retaliation
Plaintiff's final claim against defendant is that defendant
retaliated against plaintiff by terminating her in response to
Bagzis's letters to Carl Ice.
The ADA prohibits employers from
"discriminat[ing] against any individual because such individual
has opposed any act or practice made unlawful by [the ADA] or
because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under [the ADA]."
42 U.S.C.
§
12203.
To prevail on a
retaliation claim, plaintiff is required to prove:
engaged in activity protected by the ADA;
"(1) she
(2) an adverse
employment action occurred; and (3) causal connection exists
between the protected act and the adverse action."
Credeur v.
La. Through Office of Att'y Gen., 860 F.3d 785, 797 (5th Cir.
2017)
(citing Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir.
1999)).
"If the employee establishes a prima facie case, the
burden shifts to the employer to state a legitimate,
non-retaliatory reason for its decision.
After the employer
states its reason, the burden shifts back to the employee to
demonstrate that the employer's reason is actually a pretext for
18
retaliation." LeMaire v. Louisiana, 480 F.3d 383, 388-89 (5th
Cir. 2007)
(internal citation omitted).
To overcome defendant's articulated legitimate nonretaliatory reason for terminating plaintiff, plaintiff must
adduce evidence raising a genuine issue of material fact as to
whether that reason is actually pretext for retaliation.
730 F.3d at 454; LeMaire, 480 F.3d at 388-89.
employee must show that 'but for'
"Ultimately, the
the protected activity, the
adverse employment action would not have occurred."
F.3d 297, 301 (5th Cir. 1999).
Feist,
Seaman, 179
Plaintiff has failed to adduce
any summary judgment evidence that protected activity was a
factor in her discharge.
B.
FMLA and Title VII Claims
Plaintiff asserted in her original complaint claims arising
under the FMLA and Title VII.
In her motion for leave to amend
her pleadings, plaintiff expressly stated that one of the reasons
she sought to amend her complaint was to remove such claims.
Doc. 18 at 1, , 1.01 ("The new complaint removes her claims
related to FLMA and Title VII.").
Indeed, the claims do not
appear in plaintiff's live complaint.
To the extent that
plaintiff has attempted to revive her FMLA claim through her
response to the motion for summary judgment, she is not entitled
to do so.
19
VI.
Order
Consistent with the foregoing,
The court ORDERS that defendant's motion for summary
judgment be, and is hereby, granted, and that all claims and
causes of action asserted by plaintiff against defendant in the
above-captioned action be, and are hereby, dismissed.
SIGNED May 31, 2018.
J9
MCBRYDE
/;tlHited States District Ju
/
20
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